The Court of Appeal for Ontario allowed Luis Fernando Manrique’s appeal and returned the matter to the Ontario Review Board for rehearing on the issue of whether or not he continues to pose a significant threat to the safety of the public. The Judgment is available on the Court’s website here:
https://coadecisions.ontariocourts.ca/coa/coa/en/22637/1/document.do
Law360 Reporter Terry Davidson wrote an article published on September 6, 2024 about the case here:
Ontario Review Board must properly give reasons to find ‘significant risk’ to public: lawyer
By Terry Davidson · Listen to article
Law360 Canada (September 6, 2024, 11:28 AM EDT) — A recent appeal court decision is “yet another reminder” for the Ontario Review Board to always keep its eye on the “high legal test” needed when determining if a mentally ill offender poses a significant risk to the public, says the lawyer of a man with schizophrenia seeking freedom from oversight.
But Toronto lawyer Anita Szigeti also says the ruling highlights the failure of Ontario’s government to provide followup supports to those freed from the criminal system.
Anita Szigeti, Anita Szigeti Advocates
The Sept. 3 decision by the Court of Appeal for Ontario in Manrique (Re), 2024 ONCA 649, involves 55-year-old Luis Manrique, a former engineer who in 2010 was found not criminally responsible for the attempted murder of his then-wife due to his being mentally ill.
In 2023, the Ontario Review Board (ORB), fearing Manrique would go off his medication — and thus go into mental decline — if given an absolute discharge, ordered he be given a “conditional discharge” instead.
Under the conditional discharge, Manrique would have to follow up with health-care professionals regarding his condition and medication.
The ORB is an independent tribunal created under the Criminal Code to deal with those found either unfit to stand trial or not criminally responsible (NCR) for offences due to mental illness.
Not liking the ORB’s decision, Manrique turned to Ontario’s Court of Appeal. Manrique argued for the absolute discharge, insisting that he could be trusted to take his medication.
The appeal court sided with Manrique, finding that the ORB did not properly address the high standard needed in determining if Manrique would be a significant threat to the public should he be given an absolute discharge.
When speaking with Law360 Canada, Szigeti said Manrique had been diagnosed with schizoaffective disorder, which is a combination of schizophrenia and a mood disorder.
She said Manrique did not receive his diagnosis “until quite late in life,” after he had earned a degree in civil engineering and was working towards an MBA.
He had already been working as an engineer “for many years.”
According to the written appeal decision, Manrique had no criminal history prior to the incident with his spouse.
At the time of his ORB hearing, Manrique had been stable and “living in the community” for four years. He had been compliant with his medication since 2017 and, since January 2023, had been injected every three months with a “long-acting” antipsychotic medication.
At the hearing, Manrique’s treating psychiatrist said that even if Manrique stopped taking the medication, it would last in his system for around a year.
But the ORB also heard that Manrique’s mental health had declined between 2016 and 2017 because he stopped taking his medication. The psychiatrist also testified that Manrique was “not ready for an absolute discharge” and that the treatment team wanted to monitor Manrique’s recent transition to more independent living, given his sensitivity to such change.
Manrique, however, told the ORB that he would “not quit his medication without the supervision of an [outpatient] psychiatrist and the advice of his priest.”
The ORB, noting the seriousness of Manrique’s attack on his former wife, his “impoverished insight” into his need for medication and the board’s lack of confidence he would continue taking his medication, found that there would be too much risk to the public if he were given an absolute discharge.
It also found that there was no guarantee Manrique’s treating psychiatrist would be able to do followup appointments with him if he were given the absolute discharge.
But appeal court Justices Janet Simmons, Katherine van Rensburg and Julie Thorburn ordered a new hearing for Manrique, finding that while the ORB “set out the proper test for establishing a significant threat to public safety,” its reasons “were insufficient to explain how it reached the conclusion that the appellant meets that standard.”
It was noted that the standard of proving someone to be a significant threat is “an onerous one.”
“In our view, the Board’s assertion that there would be ‘a predictable decline in [the appellant’s] mental status leading to decompensation and a heightened risk to public safety’ does not explain how the appellant meets the significant threat standard. Further, the Board’s statements about the treating psychiatrist not being able to guarantee post-discharge forensic support and its reference to the ‘ideal scenario’ of non-forensic support being ‘adequately in place’ suggest the Board may have been focused on minimizing any risk created through granting the appellant an absolute discharge rather than properly assessing whether he met the significant threat threshold.”
Szigeti, founder of Anita Szigeti Advocates, told Law360 Canada the ORB should heed the appeal court’s ruling.
“It is yet another reminder to the board that we have set this significant threat threshold very high, and you need to keep your eyes on that ball — not on an ideal set of circumstances, not on what you’d think would be best for the accused, not minimizing or eradicating or eliminating every potential risk that could arise. There is a very specific legal test. You have to turn your mind to that … high legal test when you’re considering somebody’s liberty, and you have to explain how you made that finding and apply and interpret the legal test correctly.”
She said the ORB “only got halfway up the chain” of having what it needed to keep Manrique under its watch.
“They got as far as ‘We don’t think he’ll take his medication, he’ll likely decompensate or get sick as a result, and that will increase his risk to the public.’ OK, fair enough, the court says that may be true, but that’s not enough to prove or show significant risk. In order to find significant risk, you have to go further and have some evidence that the person, in addition to their increased risk, will pose such a high risk that they are likely or probably going to commit a serious criminal offence that will result in significant … harm.”
Szigeti also said that part of the reason the ORB decided to give Manrique the conditional discharge is that there was no guarantee that followup support would be available to him should he want it.
This, she said, demonstrates a failure on the part of Ontario’s government.
“Most people actually want to have ongoing services. They may not enjoy being forced to have them, and most don’t want to be under the criminal law, constantly coerced into all kinds of things, but that doesn’t mean that they don’t want supports and treatment and followup. … The failure to make services available cannot be the reason that people are criminalized … for a decade or more.”
A spokesperson for Ontario’s Ministry of the Attorney General said comment from the Crown who acted at the appeal would not be forthcoming as the case was still within the appeal period.
anitaszigeti 